Generally, hearsay – or out-of-court statements or statements otherwise not of one’s direct knowledge – is barred, unless the statements fall under one of the noted exceptions as explained under Federal Rules of Evidence Rule 803.
Birmingham medical malpractice lawyers know that statements made for the purposes of medical diagnosis or treatment may fall into this exception. The 1987 Alabama Supreme Court ruling in Seaboard System RR, Inc. v. Keen established that such statements would be admissible – but only if made to a physician. However, Rule 803(4) expands this definition, and allows hearsay exceptions to be made to include all statements given for the purposes of medical diagnosis or treatment and/or to describe medical history or past or present symptoms or other details reasonably pertinent to treatment or diagnosis.
The recent case of Kelly v. Haralampopoulos is a good example of how defendants in medical malpractice cases will use this exception. This was a case reviewed by the Colorado Supreme Court, though the same federal rule of evidence applies.
According to court documents, a man rushed to the emergency room for treatment of severe abdominal pain. During intake, he denied drug use. Doctors ordered a CT scan, which revealed the presence of a large cyst on his liver. In order to determine whether the cyst was cancerous, the doctor ordered a biopsy.
During the procedure, performed by the defendant, the man went into respiratory and cardiac arrest. For 30 minutes, the medical staff struggled to revive the man. After that time, they were able to revive his heart, but the lack of oxygen during the ordeal left him in a vegetative state, from which doctors said he would not recover.
About two weeks later, the man’s friends and family met with doctors to talk about why the man’s body reacted so poorly to resuscitation efforts.
After that meeting, the patient’s ex-girlfriend approached the doctor to ask whether the patient’s prior use of cocaine could have been the cause of the negative reaction. The doctor indicated it might have contributed, but he could not say for sure because he was not a cardiologist.
The patient’s guardian filed a lawsuit against seven physicians for medical malpractice. The plaintiff filed a motion to bar the ex-girlfriend’s statement to the doctor as inadmissible hearsay not covered by exception. In citing Rule 803(4), the plaintiff indicated the statement was not made for the purposes of diagnosis and treatment. There was no “treatment,” the plaintiff argued, because the man was already in a vegetative state. Thus, the testimony regarding cocaine use was irrelevant.
The trial court denied this motion, finding the statement did constitute one made in the course of medical diagnosis and treatment. The appellate court reversed, reasoning that the statements were made after the patient was in a vegetative state. Treatment was no longer possible, and there was no diagnosis pending. Further, the court indicated even if the statements were admissible, their probative value didn’t outweigh the danger of unfair prejudice to the plaintiff.
However, the Colorado Supreme Court reversed, siding with the trial court. Specifically, the court indicated the term “diagnosis” doesn’t necessarily mean there will be subsequent treatment. In seeking to discover the cause of the patient’s reaction to treatment, the conversation did fall under the hearsay exception.
So the case will proceed. To what extent the patient’s previous cocaine use impacted his outcome will become a factor for the court to weigh.
Kelly v. Haralampopoulos , June 16, 2014, Colorado Supreme Court
Laurel v. Prince – Physical Injuries Necessary in Alabama Medical Malpractice Claim, April 15, 2014, Birmingham Medical Malpractice Lawyer Blog